RUSSELL EVANS v. RON WILSON and MONTE BARRETT

RUSSELL EVANS, ) ) Appellant, ) ) vs. ) No. SD33209 ) RON WILSON and MONTE BARRETT, ) FILED: September 19, 2016 ) Respondents. ) APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Michael J. Cordonnier, Judge AFFIRMED We consider co-employee liability for a workplace injury in 2009, when “an injured employee could maintain a cause of action recognized by common law against a co-employee.” Peters v. Wady Industries, Inc., 489 S.W.3d 784, 787 (Mo. banc 2016). 1 Because Evans pleaded and developed facts “establishing only duties that are a part of the employer’s nondelegable duty to provide a safe workplace” (id.), as opposed to “a duty separate and distinct from the employer’s nondelegable duties” (id. at 796), we affirm the summary judgment entered in favor of co-employee Barrett. 2 Background The essential facts are not in dispute. Evans and Barrett were co-employed constructing apartments. Barrett, driving a forklift, was moving a load of trusses.

Evans walked ahead and to the side of the forklift, holding a tag line connected to both the forklift and trusses to stabilize the load as it moved.

According to Evans, Barrett negligently drove the forklift over a rock, causing the load to shift and pull Evans toward the forklift, which struck him and ran over his foot.

Evans sued Barrett, alleging that Barrett had not been licensed, certified, or “adequately trained to drive a forklift”; that Barrett’s direct supervisor (and company president) knew all these deficiencies, yet “ordered” Barrett to operate the forklift near Evans and other workers; that Barrett was negligent “[i]n operating a vehicle he was not trained to operate” and in other respects; all resulting in injury to Evans.

The trial court eventually granted Barrett summary judgment, ruling that safe forklift operation fell within the employer’s nondelegable duty to provide a safe working environment, and finding that Evans had alleged no duty independent of the employer’s nondelegable duty. Evans appeals.

2Evans does not appeal the summary judgment granted to defendant Wilson, the company president and Barrett’s direct supervisor.

Co-Employee Liability – Relevant Principles As in any negligence claim, Evans must establish that Barrett owed (and breached) a duty to Evans. Parr, 489 S.W.3d at 778. Whether a duty exists may hinge on particular facts, but “is purely a question of law.” Id. at 782.

Recent explications on co-employee workplace duties include Peters, Parr, and Leeper v. Asmus, 440 S.W.3d 478 (Mo.App. 2014), from which we summarize observations relevant to this case: • At common law, employees are liable to co-employees “for breaches of a duty owed independently of the master-servant relationship—that is, a duty separate and distinct from the employer’s nondelegable duties.”

Peters, 489 S.W.3d at 796.

• But an employee’s personal duties to co-employees do not include the employer’s nondelegable common-law safety duties to provide a safe workplace, safe equipment, a sufficient number of suitable co-workers, etc. Id.; Parr, 489 S.W.3d at 779.

• Any failure to perform one of the employer’s nondelegable duties rests with the employer, not the employee. Leeper, 440 S.W.3d at 484.

• “Thus, at common law, co-employees were not chargeable in negligence for injuries attributable to the employer’s breach of a nondelegable duty.” Id. • It follows that “an employer and a co-employee cannot be jointly and severally liable in negligence for a workplace injury.” Id. at 496 n.16.

• “If a workplace injury is attributable in any manner to the employer’s breach of its non-delegable duties, then a co-employee can owe no duty of care in negligence and the co-employee’s negligence is chargeable to the employer.” Id. 3

3As carefully and painstakingly demonstrated in Hansen v. Ritter, 375 S.W.3d 201, 210-18 (Mo.App. 2012). See also Peters, 489 S.W.3d at 795 (citing Hansen).

Analysis Summary judgment was proper for at least three reasons. First, Evans’s allegations that the employer’s supervisor (and company president) knowingly ordered Barrett to operate work machinery without adequate training, etc., describe a violation of the employer’s nondelegable duties of safety. Barrett thus “can owe no duty of care in negligence and [his] negligence is chargeable to the employer.” Id. As stated nearly a century ago: The [employer] was liable for the negligent performance of any act directed by it to be performed by any employee, whether of high or the most lowly degree, which affected the safety of that [work]place.

The duty of exercising ordinary care to keep such place reasonably safe was a continuing and nondelegable duty. For the negligent act of the employee, to whom such duty was assigned, the [employer] is liable.

Bender v. Kroger Grocery & Baking Co., 276 S.W. 405, 408 (Mo. 1925). Or per Peters just this year: “The allegations in the petition were that [Barrett] was ordered and directed to conduct work in the allegedly unsafe manner in the course of business. These allegations distinguish this case from instances in which a co- employee negligently carried out some detail or aspect of his work.” 489 S.W.3d at 800.

Next, so-called “something more” cases are correct to the extent they require, for co-employee liability, something more than an alleged failure to fulfill the employer’s nondelegable duty to provide a safe workplace. Id. at 797. 4 Yet Evans’s bad-driving allegations “allege nothing more than a failure to provide a safe working

Carman v. Wieland, 406 S.W.3d 70, 79 (Mo.App. 2013). 6 Finally, risks attendant to performing the employer’s work as directed are “necessarily subsumed within the employer’s nondelegable duties, and cannot

Conclusion “To maintain a negligence action against a co-employee, a plaintiff must show that the co-employee breached a duty separate and distinct from the employer’s nondelegable duty to provide a safe workspace for all employees.” Parr, 489 S.W.3d at 782. “In this case, the duties [Evans] asserted were breached were not separate and distinct from [the employer’s] nondelegable duty to provide a safe workplace.” Id. The petition could have been dismissed for failure to state a claim (Peters, 489 S.W.3d at 800) and was properly ruled against Evans on summary judgment. Parr, 489 S.W.3d at 776-77, 782. Judgment affirmed.

DANIEL E. SCOTT, J. – OPINION AUTHOR JEFFREY W. BATES, P.J. – CONCURS WILLIAM W. FRANCIS, JR., J. – CONCURS